Web Resources: The Legal Workshop

The Legal Workshop, a collaboration between several university law reviews, publishes summaries of recent legal scholarship. Ostensibly, these summaries are meant to be “op-ed” versions of scholarly articles for a “generalist audience.” That seems to be very wishful thinking on the part of the site’s founders. All of the summaries I’ve read seem just to be expanded abstracts of the full articles, with little if any effort made to rewrite for a generalist audience. (Would any generalist publication run an op-ed that began, “New findings in hedonic psychology…”?). Moreover, some of the summaries aren’t even that short. But though I don’t think it succeeds at its stated goal, the site is useful in a different way: for those interested in legal scholarship, it offers a portal to several law reviews at once, making it easy to get a sense of recent work across a range of topics and identify articles you may want to read in full.

So far, the site is a bit thin on criminal justice scholarship (though it does have some), but here are three recent articles that may be of interest to readers of this blog:

“Rethinking the Federal Role in State Criminal Justice,” by Joseph L. Hoffman & Nancy J. King, from the New York University Law Review. The authors give an overview of how we ended up with a system in which the federal courts are (theoretically) supposed to regulate state criminal law and procedure primarily via federal habeas corpus litigation. They argue that this indirect method of federal supervision is both expensive for taxpayers and ineffective at protecting defendants’ rights. So, they propose that Congress pass legislation reducing the scope of federal habeas, and then allocate the resultant savings towards a new federal center to provide funding, training, and best practices research for state and local public defenders. The basic idea is that giving defendants effective legal representation on the front end would be a more efficient and effective way of protecting their rights than what we have today, which is a costly and complicated system of collateral appeals on the back end.

“Happiness and Punishment,” by John Bronsteen et al., from the University of Chicago Law Review. The authors discuss the implications of recent psychological findings for punishment theory. Basically, psychological experiments suggest that people can adapt surprisingly well to almost anything, even a heavy fine or a lengthy term of incarceration. But people cannot adapt nearly as well to some of the frequent consequences of incarceration: unemployment, broken social ties, chronic disease. So the basic assumptions behind our system of punishment — that the punishment happens only during the prison term, and that the way to punish someone proportionately “more” for a proportionately “worse” crime is to extend their sentence — are misguided. In some ways, the authors suggest, a two-year sentence is not much different from a ten-year sentence in terms of the amount of punishment it imposes, and much of that punishment may actually come after leaving prison. This is obviously somewhat theoretical and for a defendant, say, who has young children he’d like to see grow up, a ten-year sentence is probably much worse than a two-year sentence. But what I gather to be the authors’ basic point is well-taken: the assumption that a ten-year sentence is exactly five times harsher than a two-year sentence, that there’s some precise mathematical calculus of punishment, bears little relation to actual human experience, and yet for some reason we let this assumption undergird our entire criminal justice system.

“Habeas Corpus and State Sentencing Reform,” by Nancy J. King & Suzanna Sherry, from the Duke Law Journal. The authors wade into the murky waters of the interaction between federal habeas and Section 1983 civil rights litigation. They propose reforms that would make it easier and more straightforward for state prisoners to challenge administrative decisions that have the effect of extending their sentences — such as the denial of parole or the miscalculation of good-time credits. If you are not a lawyer or law student (or even if you are), this is one of those articles that will probably make your head explode. Not because it’s a bad article — the authors do an admirable job of disentangling what’s basically a Rube Goldberg contraption — but because the need for such an article at all is just another demonstration of how, if some master planner set out to create a body of law as needlessly convoluted as possible, they couldn’t do a much better job than federal habeas law.